1)If a citizen of India feels that one or more of his constitutionally guaranteed fundamental rights are being violated by State, should he approach High Court first under Article 226 or should approach Supreme Court first under Article 32?
2)If a citizen feels that one of his fundamentals rights though not mentioned under part III comes under part III can he approach High Court or Supreme court to seek a clarification or opinion of court? If yes, will it be filed as a writ? What kind of writ will it be? Example: If citizen feels the right to property is also covered under Article 21 and wants opinion of the court.
07 November 2010
its advisable to approach the HC first.
In P.N. Kumar v/s Municipal corp. Delhi, reported as (1987)4SCC609, Hon'ble SC has explained why a person shall approach HC first for the enforcement of fundamental rights.
only those rights are to be enforced which form part of the law (part III of the constitution). merely because a person feels that he has right to property will not provide any cause of action for filing the writ.
petitioner can not seek unnecessary explanation from the SC. SC is not a legislative body....its functions are judicial in nature.
Since you have not mentioned the facts of your case, it can not be correctly advised what line of action you should follow in the concerned circumstances.
08 November 2010
I concurred with Kiran, but there is alao a reported case: Constitution of India- Art 136- appeal against Magistrate's Order directly to Supreme Court- Maintainability- Usha K Pillai Vs Raj K Srinivas 1993 SCC (Cri) 824.